110 F. 3d 61 - United States v. Godfrey

110 F3d 61 United States v. Godfrey

110 F.3d 61

UNITED STATES of America, Plaintiff-Appellee,v.Terry GODFREY, Defendant-Appellant.

No. 96-4733.

United States Court of Appeals, Fourth Circuit.

Submitted: March 4, 1997Decided: March 28, 1997

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Terry Godfrey appeals from the sentence imposed by the district court after he pled guilty to possession of stolen firearms in violation of 18 U.S.C.A § 922(j)(1) (West Supp.1996). We affirm.

2

Godfrey asserts that the district court erred in determining his base offense level under United States Sentencing Commission, Guidelines Manual, § 2K2.1(a)(2) (Nov.1995), which provides for a base offense level of twenty-four "if the defendant had at least two prior felony convictions of either a crime of violence or a controlled substance offense." An interpretation of a guideline is reviewed de novo. United States v. Blake, 81 F.3d 498, 503 (4th Cir.1996). Under USSG § 2K2.1(a)(2), the court is instructed to count "any such prior conviction that receives any points under § 4A1.1 (Criminal History Category)." USSG § 2K2.1, comment. (n.5). Prior to this offense, Godfrey was convicted of two counts of aggravated robbery. Because these counts were considered to be related under USSG § 4A1.2(2), only one of the sentences could be counted under USSG § 4A1.1(a). However, the second aggravated robbery sentence was correctly counted under USSG § 4A1.1(f). Thus, the district court properly attributed to Godfrey two prior felony convictions under USSG §§ 2K1.2 (a)(2), 4A1.1 (a) & (f).* Accordingly, we affirm Godfrey's sentence.

3

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

Godfrey's reliance on the definitions in USSG § 4B1.2(3) is misplaced. That section, pertaining to career offenders, is not applicable to a sentence imposed in accordance with USSG § 2K2.1(a). See United States v. Krzeminski, 81 F.3d 681, 682-84 (7th Cir.1996)